It is stated that the report of the Commissioner is intended to assist the Court in proper understanding and appreciation of the matter in dispute in the case. If the Court finds that the report of the Commissioner is not free from blemish and there is discrepancy in the evidence of the Commissioner and his report which is likely to mislead the Court, the right course for the Court would be to reject the report of the Commissioner, so also his evidence.
Print Page
The report of Commissioner regarding measurement of the land in dispute has been discarded as it was found that there was no fixed point available near the dispute plot and it was not possible to carry out the measurement from the point that was available as no line was properly visible from there and, therefore, the Commissioner had to set up two imaginary points with the help of the map and carry out the measurement of the land in dispute and, therefore, the High Court found that the report of the Commissioner suffers from fundamental error as there could not be any guarantee of accuracy of the measurement in the process adopted by the Commissioner. The Court further observed that the order of the Court accepting the report of the Commissioner cannot be sustained. In the case before hand, the learned Counsel for the appellant has rightly pointed out from the evidence of Deotale (P.W. 1) that no permanent points were fixed or located before starting the measurement of land in dispute. The witness Deotale however admitted that he fixed two points but did not measure the distance between those two points and, therefore, the correctness of the two points could not be ascertained. The first Appellate Court has not taken into consideration this piece of evidence. It goes without saying that when the land is measured by plain table method the authority measuring the land has to locate permanent fixed points since fixed points in survey operations are paramount fixtures and if the fixed points were not available near about the disputed plot, he has to find out other permanent structures near about the plot and take measurement. In no circumstances, the surveyor should not have set up imaginary points with reference to the map by which process there cannot be any guarantee of accuracy of the measurement. Therefore, it has to be said that the first Appellate Court fell into error of not appreciating such fundamental errors committed by Deotale (P.W. 1) while measuring the land. In addition to this, what is found on record by me is that the map Ex. 30 no where points that permanent fixtures are noted by Deotale muchless of the trees which were standing on the common Dhura of the land and as the evidence stands these trees were standing since the time the land was purchased by the plaintiff and defendant. It is also pertinent to note that in the map Ex. 30 besides defendant, encroachment is claimed to have been made by others but the witness had not measured the lands of other persons including defendant. He has also not indicated in the map Ex. 30 the total acreage of the land owned by plaintiff that was found at the time of measurement. The position of Nali is admittedly on the Northern side of the common Dhura. That is also not shown correctly in the map Ex. 30. This relevant material in the evidence and serious fundamental error in the measurement materially affects the accuracy and authenticity of the measurement. Therefore, the first Appellate Court committed an error in accepting the evidence of Deotale (P.W. 1) and map Ex. 30 as conclusive evidence supporting the claim of plaintiff as to encroachment.
Bombay High Court
Govind S/O Raoji Katole vs Ganpati S/O Tukaramji Khanke Dead ... on 21 September, 2001
Equivalent citations: 2002 (1) BomCR 124
